Protection of Freedoms Bill

Memorandum submitted by Michael Charman (PF 18)

Protection of Freedoms Bill, Sections 54 – 56

Introduction

1. I am Michael Charman, the Managing Director of Pace Recovery & Storage Limited t/as Ace Security Services and the Chairman of the Vehicle Immobilisers Association (VIA). I have also served with the Metropolitan Police Service for 17 years, resigning in 1988 having achieved the rank of Detective Inspector.

2. Ace Security Services has been involved in the clamping of vehicles parked on private land without the authority of the landowner in London and the South East for nearly 20 years. In the past we have had contracts with Southwest Trains, Great Northern Trains, Great Eastern Trains and the whole of the London Borough of Camden. Today we only operate in London and have 191 sites spread throughout the 32 Boroughs of London. Our clients include Lewisham Homes (formally Lewisham Council), the London Borough of Camden, Network Rail and large property managing agents/owners including Workspace, Rendall and Rittner, Kinleigh Folkard and Hayward and Orbit Housing Association. Most of the parking we control is specifically for residents and their visitors.

3. I am extremely experienced in dealing with the problems faced by landowners who wish to keep their parking areas clear of unauthorised vehicles. The role of the clamping company is twofold; firstly to keep out general members of the public and secondly to control the parking on site by those people who are entitled to use the land. The second role is extremely important in London as the majority of residential developments do not have sufficient space for the number of vehicles that maybe entitled to park on the land.

4. Clamping is a very emotive subject and those in the industry face conflict on a daily basis. Even though the clamping company is responsible for dealing with this conflict, some always spills over onto the landowner. We charge an annual site fee for every contract with landowners. These fees range from £200 to £2,900 per year. Our clients are all aware of the conflict that will arise from using clamping to control the parking on their land. They have tried all other methods available to them and have been left with no other choice but to pay for the service of clamping.

5. We hold keys, swipe cards and fobs for 47 of our sites where they have barriers or gates, either at the entrance to the site or in designated areas within the site. Although these type of security measures help with the control of parking, on their own they have failed to properly control the parking on the land.

6. The VIA was formed just after the Crime and Security Bill received Royal assent on April 8, 2010. Although there had been several forums held with the SIA over the previous years, there was no organisation that truly represented vehicle immobilisers. A few of us had been arguing ever since the introduction of licensing, that the licensing of individuals would be ineffective and that it was the licensing of the companies that was needed to control the industry. This has been proved to be correct and we wanted to ensure that with the new regulations there would be a definitive code of practice that would rid the industry of the "rogues" once and for all.

7. At the first meeting on April 10, 22 companies, with sites all over England and Wales, were represented. Together we formulated our objectives and agreed that we would be prepared to work to one set of rules that would include maximum clamp release fees, clear signage and bring an end to unwarranted multiple charges. It was agreed that I would be responsible for writing our code of practice. The constitution and initial code of practice of the VIA can be viewed at www.viassociation.org.uk

8. Since the announcement by Ms Featherstone to ban clamping and towing on all private land, the VIA has spent most its time monitoring statements by government and the progress of the Protection of Freedoms Bill.

Evidence

9. This evidence is submitted on behalf of our clients and the thousands of residents that will be adversely affected if the proposed ban on clamping and towing is made law. This is no dispute that the clamping of cars as a deterrent to stop the misuse of parking on private land needs to be carefully and strongly regulated. The majority of companies involved in this industry have already shown their agreement to this, confirmed in the publication of the results of the Final Impact Assessment on Proposed Business Licensing in March 2010 and their support of the VIA.

10. The clamping of a vehicle is a very powerful action. The driver is deprived of their vehicle and is required to immediately pay for the release of that vehicle. However, my experience and records over the past 20 years show that it is an action that is required as the final deterrent against the actions of some drivers who believe they have the right to park where they want, irrespective of the needs or wishes of the landowner. The use of tickets and barriers are very useful tools in controlling parking but on their own will not prevent the increasing aggressive behaviour of some drivers.

11. This evidence is supported by what is happening on the streets. More and more Councils and Boroughs are implementing stronger measures to control parking and prevent the obstruction of entrances by vehicles. Drivers ignore warning signs, road markings and designated parking areas. They are issued with PCNs that are going unpaid and the same vehicles continue to park without any concern for the regulations or that they may be obstructing the entrance to someone’s residence or business. This leaves Councils and Boroughs with no other choice but to eventually resort to clamping and towing.

12. Even the DVLA is unable to enforce the need to purchase a road fund license without the threat and use of the clamp or towing away of offending vehicles. The problems experienced by Councils, Boroughs and the DVLA are no different to those experienced by private landowners.

13. Some of the increased problems "on street" over the years has been caused by the effective parking control on private land bordering these areas. Once unwanted cars are stopped from parking on the private land by the use or threat of the clamp, they are displaced to neighbouring properties or onto the street. The Government has given no consideration to the displacement of vehicles from the streets back to the private land, which will happen, if this ban is implemented. The people who abuse parking "on street" are no different to those who abuse it "off street".

14. In a letter to my MP, Crispin Blunt, in November 2010, Ms Featherstone stated "We agree that it is important to balance the rights of the motorist to have access to their vehicle, with the rights of landowners to use and control access to their property." By implementing a ban on clamping, the Government is saying that the rights of the motorist having access to their vehicle are more important than the rights of the landowner to protect the use and control of their land. In other words a person, who parks blocking a garage, depriving the owner of the use of that garage or the vehicle inside, has more rights than the garage owner. How can it be fair or right that the aggressor has more rights than the aggrieved?

15. Ms Featherstone goes on to say "The ban on clamping and towing on private land will not prevent landowners or vehicle immobilisation companies from carrying out other forms of parking control, for example ticketing or using barriers." Evidence from my sites, together with reports from Westminster and Greenwich Councils, clearly show that tickets on their own do not work. There is no inconvenience to the driver and they are a very poor deterrent. These Councils already have the power proposed under section 56 and yet report that from April 1 2009 to March 31 2010, the total number of tickets paid is only 63%. This is completely contrary to the evidence put forward by Ms Featherstone in the Impact Assessment of January 18 2011, where it is quoted that the average of recovery of tickets on private land at this time is 75%, expected to rise to 90% with the introduction of Section 56. One of the reasons given by Westminster Council for this low figure is the number of foreign plated vehicles and the lack of correct registered keeper details held by the DVLA.

16. As already mentioned in paragraph 5, the use of a barrier or gates can be a useful tool in controlling the entrance to a particular piece of land by unwanted vehicles. What they will never do is control the parking of vehicles once they are inside the barrier. One of the reasons the Government has given for not implementing the Crime and Security Act 2010 is that "We believe, however that this would have been an expensive and complicated solution to the problem." Does the Government think that the installation of barriers would not be an expensive and complicated matter for landowners? Even if they could all get planning permission, which some are unable, there is the problem of getting all residents to agree to the extra cost as most lease agreements will not have a provision for the installation of a barrier. The cost of a barrier is not just the installation, there is also the cost of ground works to supply electricity and the ongoing maintenance. This will amount to thousands of pounds. Barriers are also prone to breaking down. Once that happens, the land will have no protection.

17. One of our sites in South East London is owned by the City of London. It is a very large residential area with a church and an old people’s home with marked ambulance bays. Barriers were already in place to control access to the main residential parking areas when our contract began in August 2000. These barriers have been out of operation on several occasions, resulting in an increase of unauthorised parking on each occasion. Even with the barriers working, we receive calls every week from residents who are unable to use their parking bays as there is an authorised vehicle in their bay.

18. Section 55 extends the powers of Section 99 of the Road Traffic Regulation Act 1984 (removal of vehicles illegally, obstructively or dangerously parked, or abandoned or broken down) to cover private land. The police will have the power to move cars that are parked dangerously or obstructively on private land. No one believes the police will have time to deal with such incidents. This is confirmed in the 2011 Impact Assessment under "Police Response". This new power would be exercised at the discretion of the police and not a duty. It was the view of ACPO that police forces would consider attending only where, in their view, there is a risk of harm. They specifically recommended steps to be taken to ensure that the public are aware that the police would not attend routinely to resolve civil parking disputes. Making this clear would be key to ensuring that the public’s expectations are not raised inappropriately. The Government has made no attempt to make this clear to the public; on the contrary they have gone out of their way to infer that police will help in dealing with unwanted cars.

19. During the release of statements and information to justify the ban on clamping and towing, the Government has made frequent reference to the "success" of a ban in Scotland, yet the Scottish Government does not want the new legislation to extend to Scotland. This could be due to the fact that they are having trouble with the abuse of disabled bays in private car parks and may be considering their own legislation to allow clamping to solve some of these problems.

20. More importantly, I believe it is very misleading to continue to compare Scotland, with a total population of 5.1 million, to England, where the 32 London Boroughs alone have a known population of 7.7 million, which does not include the millions that visit or pass through London every year.

21. In paragraph 16, I mentioned that one of the reasons for not implementing the clear answer to the problem of rogue clampers, which is the Crime and Security Act 2010, is the cost. One of the examples given is the cost of at least £2m to set up an appeals system that would have to be underwritten by public funding. I have contacted several of our landowners and asked them if they would be prepared to contribute to an independent appeals system. Without exception, the answer was "of course we would". This is an avenue that has not been explored by the Government as a way to save costs.

22. There are two other important points that need to be addressed. The first concerns the explanatory notes to Section 54(2). I assume that this section was necessary to negate the edict of Arthur v Anker which made clamping lawful provided there was correct signage displayed on site so that any one driving onto the land would be reasonably expected to see and read the warning sign, thereby consenting to the possibility of their vehicle being clamped and the payment of a release fee. Explanatory notes, by definition are there to explain what is meant by the legislation – "198. Subsection (2) provides that any consent, whether express or implied, given by a person entitled to remove the vehicle to the immobilisation, movement, or restriction of movement, does not constitute lawful authority for the purposes of subsection (1). A driver of a vehicle, by parking in a commercially run car park, may have impliedly accepted the landowner’s offer to park (or that of the parking company acting as the landowner’s agent). He or she may also, depending on what is advertised at the car park, have impliedly agreed to comply with the terms and conditions advertised, including the parking charges and the associated enforcement mechanism for those charges. However, by virtue of this subsection, the operation of the law of contract as it applies to commercially run private car parks does not confer lawful authority on the landowner or operator of a car park to clamp or tow away a vehicle parked there."

23. These notes refer specifically to a commercially run car park and the driver having implied the acceptance of the landowner’s offer to park. The land that the majority of clamping companies protect is private land where the public are not invited and therefore there is no offer to park. The notes go on to state that by subsection 2, the law of contract as it applies to commercially run private car parks does not confer lawful authority. If one is to take these notes as correct, Arthur v Anker would still apply to residential car parks which are definitely not run as commercial car parks.

24. The second important point concerns the second reading of the Bill on 1 Mar 2011 : Column 210

Gavin Barwell (Croydon Central) (Con): Further to my right hon. Friend's answer to the hon. Member for Luton South (Gavin Shuker), will she confirm that local authorities will continue to have the power to clamp on the public highway? Will residents in private developments be able to contract with their local authority to clamp on private developments? I have been contacted by a large number of people in my constituency who have tried ticketing and barriers but found that they do not work close to the town centre and public transport hubs. Could local authorities continue to clamp on private land?

       

Mrs May: I am grateful to my hon. Friend for raising that point. Local authorities already have the ability to take a controlling interest and to run parking on private land, subject to the agreement and request of the landowner, although that facility has not been much used.

25. I, nor any of my clients, have ever heard of the ability of local authorities to take a controlling interest and to run parking on residential private land. We have contacted Croydon Council who has confirmed that they do not and will not provide a clamping service for private residential estates. The same applied to Surrey Council and Banstead & Reigate Borough Council. This seems to indicate that the Home Secretary has not been properly informed or she has made a terrible mistake. Either way, the public has been misled by a statement from Government.

26. As already mentioned, private landowners are subject to exactly the same problems as experienced on public land with the relatively low numbers of thoughtless, selfish and foreign drivers. At the moment, like local Councils, they can decide to what level they want to go to control the problem. It is very important to remember that it is the landowner’s choice to use a clamping company and in most cases, they will only do it as a last result. If the ban goes ahead, the problems faced by landowners and residents will increase substantially and in reality there will be very little they can do about it.

27. This legislation may be good politics for the Liberal Democrats, but it will not protect the freedom of landowners or residents to live a peaceful life. If the clamping and towing of offending vehicles is to be made unlawful, then it should apply to everyone. Why should an offending vehicle be protected on private land, but not on the streets?

28. It seems clear that the Government does not understand the problems of trying to control parking on private land and the affect it will have by implementing a ban on clamping and towing. It certainly does not seem to understand the difference between private land where the public are invited, such as commercially operated car parks, and private land where the public are not invited, such as residential areas.

29. Rogue clampers are in the minority and are usually one or two operators working a very small area. If the Crime and Security Act 2010 was implemented, the majority would disappear, if for no other reason that they would not to be able to afford the business licence fee. The public do have a right to be protected from made up charges and sharp practices, but at the same time the landowner should not be forced to have to put up with aggressive behavior from inconsiderate drivers.

March 2011